1828581 (Migration)

[2020] AATA 4253

1828581 (Migration) [2020] AATA 4253 (13 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828581

MEMBER:Hugh Sanderson

DATE:13 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 13 August 2020 at 2:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – sponsor incarcerated for drug importation offences – provision of emotional support – claims of persecution previously rejected – COVID19 outbreak in Nigeria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 December 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found that at the time of the application the applicant did not hold a substantive visa and did not satisfy criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of Nigeria and is currently [age] years old. He first entered Australia [in] June 2014 holding [a] Visitor visa. This visa expired [in] July 2014. He has not held a substantive visa since that time.

5. The applicant applied for a Protection visa which was refused by the Department. That decision was affirmed by the Tribunal (differently constituted) on review. The applicant appealed against that decision and his appeal to the Federal Circuit Court was dismissed.

6. The applicant was sponsored for the application by [Ms A]. She was born in [Country 1] and is currently [age] years old. She was granted a Subclass 202 Humanitarian visa and first entered Australia in 2004. Her mother and [number of] siblings all live in Australia.

7. The parties claimed they first met each other in early February 2015. At that time, the applicant was living in Sydney and the sponsor was living in Melbourne. A relationship developed and they decided to marry. They were married [in] November 2016. The marriage certificate discloses that the applicant was still living in Sydney at the time and the sponsor was living in Melbourne. It was claimed the applicant then moved to Melbourne to live with the sponsor.

8. Various documents were provided in support of the claim that the parties were in a genuine relationship. This included statements from friends and family claiming that the relationship was genuine.

9. The sponsor travelled overseas [in] April 2017. When she returned [in] May 2017, she was found to be carrying almost 5 kg of methamphetamines and was charged with various drug importation offences. She was refused bail and remanded in custody in Perth.

10. The Department noted that the applicant did not hold a substantive visa at the time of the application and appeared not to meet the Schedule 3 criteria. The applicant was invited to provide compelling reasons for not applying those criteria. The applicant provided a statement where he made the following claims:

    ·The applicant applied for a Protection visa because he feared persecution in Nigeria;

    ·The sponsor is currently incarcerated in Western Australia on allegations they are determined to defend;

    ·The applicant has been constantly in touch with the sponsor, writing to her or telephoning her and travelling to Perth to spend time with her;

    ·The sponsor needs the applicant most at this most difficult time of her life;

    ·If the applicant was required to apply for the visa offshore, this would negate his responsibilities to the sponsor;

    ·The applicant has never committed an offence and has always been compliant with visas granted to him; and

    ·The circumstances by which the applicant did not hold a substantive visa were beyond his control.

11. The delegate who considered the application noted the following:

    ·As the applicant had not held a substantive visa for more than two years prior to the filing of the application, he did not meet criterion 3001 of the Schedule 3 criteria;

    ·The fact that the parties may be in a genuine relationship is not, of itself, a compelling reason as all couples who are required to file offshore Partner visa applications face some degree of emotional and financial hardship;

    ·On the evidence of the applicant, he only visited the sponsor on one occasion while she has been in prison;

    ·The sponsor has other family members in Australia who could provide her with emotional support;

    ·The claims that the applicant faces persecution in Nigeria were not accepted when assessed by the Department and the Tribunal on review, and no further information has been provided to support such a claim; and

    ·The fact that the applicant made an unsuccessful application for a Protection visa and remained lawfully in Australia does not provide a compelling reason for not applying the Schedule 3 criteria.

12. Taking these matters into account, the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.

    Information to the Tribunal

13. The sponsor pleaded not guilty to the drug charges. She was, however, convicted of the offence and sentenced to a minimum of five years’ jail for the offence. It was stated that she was due to be released in February 2023.

14. The applicant provided various documents in support of the application. This included the following:

    ·Statements from the sponsor claiming she was dependent upon the applicant for her emotional support now that she was incarcerated;

    ·Flight bookings from Sydney to Perth for the applicant;

    ·Superannuation beneficiary nomination;

    ·Joint bank account details;

    ·Photos of the parties’ wedding and other social events; and

    ·Copies of correspondence sent between the parties.

15. The applicant provided bookings for flights from Sydney to Perth and return for the following dates:

    ·[Date] March 2017 returning [2 days later] March 2017;

    ·[Date] May 2017 returning [1 day later] May 2017;

    ·[Date] October 2017 returning [1 day later] October 2017;

    ·[Date] March 2019 returning [1 day later] March 2019;

    ·[Date] March 2019 returning [2 days later] March 2019;

    ·[Date] April 2019 returning [2 days later] April 2019; and

    ·[Date] July 2019 returning [3 days later] July 2019.

16. The applicant appeared before the Tribunal on 11 August 2020 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing with the applicant.

17. The Tribunal in the hearing invitation had raised the issue of the certificate pursuant to s.376 of the Act on the Department’s file. The Tribunal found that the certificate was not valid. The information referred to covered by the certificate related to the sponsor’s arrest and being charged for importing drugs. As such, it was not relevant to the current proceedings as the applicant had provided evidence of the sponsor’s conviction and incarceration until at least February 2023 after being convicted of those charges. There was no information in the material that would prejudice any investigation.

18. The applicant provided details of his current accommodation and work. He said that he was currently working in [Industry 1] earning about $2,200 per fortnight. The applicant said that [Bank 1] had closed the joint account he held with the sponsor claiming that it was not being operated, but he claimed this was wrong. He said that he continues to keep in touch with his aunt in Nigeria and said that she was “doing good”. He said that he spoke to her about two days prior to the hearing.

19. The Tribunal reviewed the times the applicant had claimed that he had travelled to Perth to see the sponsor. He confirmed the dates he travelled as set out above in paragraph 15. He said that he did not travel at all to Perth in 2018 because the sponsor did not want him to come to visit her as she was worried about money. He confirmed that he had not travelled to Perth to see the sponsor since July 2019. His agent claimed that this was because the applicant was on call for work, seven days a week.

20. The applicant said that he only started living with the sponsor in Melbourne in December 2016. He said before that he had stayed with the sponsor sometimes at her place in Melbourne and she had stayed with him in Sydney. He said that he moved back to Sydney after the sponsor was arrested. He said that the sponsor told him that she wanted to have a holiday which was why she decided to travel overseas in April 2017. The Tribunal noted that it seemed strange, as they had only been living together for about four months, that the sponsor would then say that she was taking a holiday away from the applicant. It indicated a lack of commitment to the relationship. The applicant did not have anything to say in response to this. He said that it was a shock to him when the sponsor was arrested.

21. The applicant said that he supports the sponsor through writing to her and phone calls and sending her money. He said that he would have difficulty doing this in Nigeria. He said that he was still afraid of returning to Nigeria and would not feel safe there. The Tribunal noted that his Protection visa application had been refused and he had not provided any further information to support any claim that he faced any genuine fear of harm in Nigeria. The applicant did not provide any further information about why he could not return to Nigeria.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. As the applicant did not hold a substantive visa at the time of the application, the Tribunal must consider whether he satisfies the Schedule 3 criteria and, if he does not, if there are compelling reasons for not applying those criteria.

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

24. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

25. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

    Criterion 3001

26. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2). In the circumstances of the applicant, the relevant day is the last day he held a substantive visa.

27. The last substantive visa held by the applicant was his Subclass 600 Visitor visa which expired [in] July 2014. This was more than two years prior to the current application being made.

28. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

29. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

30. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

31. There is no information before the Tribunal which would indicate that at any time the applicant has not been lawfully present in Australia. Before his Visitor visa expired, he applied for the Protection visa and was granted associated Bridging visas while this application was assessed by the Department and then reviewed by the Tribunal and finally went before the Federal Circuit Court before it was dismissed. He also held a Bridging visa after applying for the Partner visa. The Tribunal is not satisfied, however, that this would provide a compelling reason for not applying the Schedule 3 criteria. It is an expectation of any person in Australia that they have a lawful right to remain in Australia. The fact that the applicant did not remain in Australia at any time unlawfully is not something that forms part of the criteria to waive the Schedule 3 criteria. Criterion 3001 which the applicant must meet only refers to whether the application was lodged within 28 days of the day the applicant last held a substantive visa. It does not make any reference to whether the applicant had ever been unlawfully in Australia. The fact that the applicant may have been lawfully in Australia at all times is not a compelling reason for not applying that criterion.

32. The applicant claims that the fact that he did not hold a substantive visa was due to circumstances beyond his control. The applicant arrived in Australia on a Visitor visa. He applied for a Protection visa which was shown to have no merit, and that decision of the Department was affirmed by the Tribunal and an appeal against that decision was dismissed by the Federal Circuit Court. The applicant claimed to have only married the sponsor immediately after his last appeal to the Federal Circuit Court had been dismissed.

33. Criterion 3001 of the Schedule 3 criteria, which the applicant does not meet, does not provide any provision that the applicant would meet the criteria if the reason he did not hold a substantive visa was due to circumstances beyond his control. In any event, the Tribunal does not accept that the decision of the applicant to remain in Australia after his Visitor visa expired and then make an unmeritorious application for a Protection visa indicates that the reason he did not hold a substantive visa was due to circumstances beyond his control. In any event, the Tribunal is not satisfied that the circumstances the applicant describes as to why he did not hold a substantive visa provide a compelling reason for not applying the Schedule 3 criteria.

34. The applicant claimed that he feared returning to Nigeria. The applicant has previously made an application for a Protection visa and this application was refused by the Department, and that decision was affirmed by the Tribunal on review. An appeal by the applicant to the Federal Circuit Court was dismissed.

35. The applicant’s claims of having any fear of returning to Nigeria have been fully assessed by the Department and the Tribunal on review. His claims were not accepted and he was found not to meet the criteria for the grant of the Protection visa. The applicant has provided no further information to the Tribunal to support any claim that he has any genuine fears if he returns to Nigeria. Apart from claiming that he fears returning to Nigeria, there is no information before the Tribunal which would indicate that the applicant has any genuine fear of returning to Nigeria or that he would face any harm if he were required to return to Nigeria to apply for an offshore Partner visa.

36. The applicant’s aunt continues to live in Nigeria. The applicant keeps in contact with his aunt, advising the Tribunal that he had spoken to her only two days prior to the hearing. He said that his aunt was “doing good” and provided no information which would indicate that she faced any problems associated with any previous claims made by the applicant or that she could not provide the applicant support if he did return to Nigeria. The Tribunal does not accept that if the applicant faced any difficulties in Nigeria that he would simply describe his aunt as “doing good” and would not be able to provide information that she would have been able to provide to him about any claimed threat or harm to the applicant. There is no credible information that there are any threats against the applicant in Nigeria or that he would face any harm there.

37. As the applicant’s aunt continues to live in Nigeria, it would be expected that she would be able to provide some assistance to him upon his return. The applicant has shown himself to be a resourceful individual to be able to live and find work in Australia. It is likely that he would be able to re-establish himself in Nigeria and find employment there while any offshore application was being processed.

38. Although the COVID-19 pandemic has affected every country, including Nigeria, the current reporting of cases in Nigeria from the John Hopkins University indicates a relatively low per capita reporting of cases and deaths associated with the virus outbreak. As at 11 August 2020, there were 46,577 confirmed cases. In the previous week, there were 2,736 cases, a decline from the high of 4,323 cases recorded in a week commencing 21 June 2020. This is fairly typical of most of the African continent. The number of deaths and cases reported has been falling since June 2020. As almost every country has been adversely affected by the COVID‑19 outbreak, the Tribunal is not satisfied that any of the circumstances associated with the COVID‑19 outbreak in Nigeria and the circumstances that the applicant would face in Nigeria as a result of the COVID-19 cases in Nigeria provide a compelling reason for not applying the Schedule 3 criteria.

39. The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

40. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.

1. The applicant stated that he only started living with the sponsor in December 2016 after they were married in November 2016. The sponsor then travelled overseas in April 2017 and, upon her return, was arrested and eventually convicted of importing methamphetamines with the co‑accused. She has been in prison since she returned to Australia and her non‑parole period does not expire until February 2023. If she is not granted parole, she faces a further four years in jail after that.

2. The applicant has had limited physical contact with the sponsor since her imprisonment. He has travelled to Perth to visit the sponsor in jail on three occasions in 2017 immediately after her imprisonment and on four occasions in 2019. The last time he visited her was in July 2019.

3. The applicant claimed that he did not visit the sponsor at all in 2018 as he claimed the sponsor wanted to save money. He had not attempted to spend any time with her after July 2019 again to save money and because he was busy with his work. He has been keeping in contact with the sponsor by telephone and written correspondence.

4. There is nothing to indicate that the applicant could not continue to have continuing contact with the sponsor in prison by telephone and written correspondence. Although the applicant’s agent claimed the telephone services in Nigeria were not good, this was not the evidence given by the applicant who indicated that he spoke to his aunt regularly, including speaking to her two days prior to the hearing.

5. The Tribunal is not satisfied that the sponsor is dependent upon the presence of the applicant in Australia for any emotional support while she is incarcerated. The fact that the applicant claims she told the applicant not to visit her for the whole of 2018 indicates that she is not dependent upon the applicant whilst incarcerated. The applicant has not travelled to see the sponsor since July 2019. Although the current travel restrictions due to the COVID‑19 pandemic prevent any travel from Sydney to Perth, these restrictions were only introduced in about March 2019, more than six months after the applicant had ceased travelling to spend any time in person with the sponsor. This indicates that the applicant does not have any degree of commitment to spending time with the sponsor or that the sponsor is dependent upon the presence of the applicant in Australia to support her during the period of incarceration which would provide a compelling reason for not applying the Schedule 3 criteria.

6. The parties had only been living together for about four months before the sponsor travelled overseas and was subsequently arrested and convicted for smuggling drugs. The applicant has continued to live an independent life from the sponsor, returning to live in Sydney. The contact that the applicant has had with the sponsor while she is incarcerated and any emotional support he has been providing her has been done through writing letters and occasional telephone calls. There is nothing to indicate that he would not be able to continue to have this communication with the sponsor if he returned to Nigeria to apply for an offshore Partner visa. The physical contact the applicant has had with the sponsor has been particularly limited, with no in-person contact since July 2019, more than a year ago.

7. The Tribunal is not satisfied that anything in the nature of the relationship between the applicant and the sponsor provides a compelling reason for not applying the Schedule 3 criteria. The sponsor is currently incarcerated and will be at least until February 2023. Upon release even if the applicant has not been granted, by that time, a Partner visa, the parties would have become accustomed to being separated and there is nothing to indicate that the sponsor would have any more difficulties in returning to life outside prison as any other former prisoner. The amount and nature of contact the parties currently have would be able to be maintained while any offshore Partner visa application was being processed.

8. The Tribunal has assessed the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that, when considered in combination, the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.

9. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is nothing before the Tribunal to indicate that the applicant would meet any of the alternate criteria in cl.820.211.

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Hugh Sanderson
    Member